Homosexual marriages and marriage equality
Why in news :
- A recent statement by a Member of Parliament that same-sex marriages are against the (so-called) cultural ethos of India has once again stirred up the debate on marriage equality.
- This is amidst a petition for marriage rights of same-sex couples (under the Special Marriage Act, 1954) pending before the Supreme Court of India.
Current status and Supreme court Judgement :
- The supreme court read down Section 377 IPC and decriminalised consensual sexual conduct on the basis that it created an unreasonable classification for same-sex persons under Article 14, besides being violative of bodily autonomy under Article 21.
- The supreme court decriminalised consensual same-sex conduct on the basis of the ‘right to equality’ and not merely the ‘right to privacy’.
- It violates right to privacy because one’s sexual orientation and choice of a sexual partner were held intrinsic to privacy and personal liberty.
- It also violates right to equality because equal treatment of same-sex couples with those of heterosexual couples was considered paramount.
- The court also held that any classification that perpetuated stereotypes was violative of Article 15.
- Further, sexual orientation implicated both negative and positive obligations on the state.
- Besides noninterference, it called for a recognition of rights to ensure true fulfilment of same-sex relationships.
- Previously, even in NALSA (2014), the Court acknowledged the importance of sequential rights arising from ‘gender identity’ (employment, health care, education, equal civil and citizenship rights).
Status of same-sex marriages in other countries :
- In Northern Ireland :
- The European Court of Human Rights, in Dudgeon vs UK (1981), struck down the offence of buggery in Northern Ireland as violative of Article 8 of the European Convention on Human Rights because it disproportionately restricted personal and family life.
- This restriction cast on the most intimate part of personal life could not be justified by any pressing social need.
- The court thus adopted a privacy approach and did not go into the question of equal treatment under Article 14.
- In Italy :
- In Oliari vs Italy the court reasoned that states could not be obligated to grant marriage equality, provided there was some form of legal recognition of their rights.
- Many European countries had not yet granted marriage rights and only recognised civil partnerships shaped the court’s decision.
- South Africa :
- In Fourie (2005), the Constitutional Court rejected the state’s argument that the Constitution only protected the right to establish family in private life without state interference and not to marry.
- Exclusion to marry was considered antithetical to equality and dignity and permitting it would have meant that marriage of a homosexual couple was inferior or of lesser worth.
- This was constitutionally impermissible.
- In U.S.A. :
- The court decriminalised same-sex relations (Lawrence vs Texas 2003) and granted marriage equality (Obergefell 2015), both under the due process clause of the Fourteenth Amendment of its Constitution.
- The focus was thus on personal liberty.
Problems faced by Homo-sexual couples and the issues :
- It violates their right to privacy under article 21.
- It violates their right to equality under article 14 and 15.
- They face stigma and discrimination in every day life.
Survey showing how people react and respond to LGBTQ community being around.
- Use of penal provisions every now and then to threaten them.
- Lack of employment opportunities and the social benefits.
Way forward :
- The Supreme court should decide the case on positive terms for the LGBTQ community as early as possible.
- Sensitizing the public on the problems of LGBTQ community.
- Reforming the education to include the curricula on equal terms basis for every community.
- The marriage rights should immediately be recognized as in India the institution of marriage is so sacred, denying the same would be discriminatory.
Syllabus : GS2- Governance; various laws and acts, supreme court judgements for the betterment of vulnerable sections of the society.
